# NARAYAN CHETANRAM CHAUDHARY AND ANR v. ST A TE OF MAHARASHTRA

- **Citation:** [2000] Supp. 3 S.C.R. 104
- **Court:** Supreme Court of India
- **Decided:** 2000-09-05
- **Bench:** K.T. Thomas, R.P. Sethi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/narayan-chetanram-chaudhary-and-anr-v-st-a-te-of-maharashtra-17558
- **Pages:** 38

## Headnote

Criminal Procedure Code, 1973: Sections 306 and 307-Evidence of
approver-Non-recording by the Magistrate-Effect of-Law mandates
C satisfaction of the Court that accused would make full and true disclosure
of the circumstances without his knowledge relating to the crime-It could
also be recorded after commitment of the case and before the judgment is
passed
Criminal Procedure Code, 1973-Sections 161, 162-Statement under
D interrogation-Held, cannot be used for contradicting witness.
Penal Code Section 302-Murder of seven females of a family including
two children and a pregnant woman-One of the accused becoming
approver-Death sentence for other accused granted by Sessions Court
confirmed by High Court-Held, rarest of rare case-Hence death sentence
E confirmed
Appellants along with one R, committed the murder of seven female
members of a family including two children and a maid servant. The offence
of murder was committed with a view to wipe out all evidence of theft and
robbery committed by the accused. After the case was committed to the
F Sessions Court and prior to the trial as per the request of the accused R the
prosecution sought for permission to get his confession recorded which was
granted by the trial court. The prosecution then filed an application for
tendering pardon to R on making necessary inquiries and on the condition
that he shall make true and full disclosure of all facts within his knowledge,
G which was allowed by the trial court. After trial, the trial court convicted both
the Appellants and sentenced them to death. The criminal Appeals filed by
Appellants were dismissed and the death sentence was confirmed by the High
Court.
In Appeal to this Court the Appellants submitted that it would be unsafe
H to award death sentence solely on the basis of testimony of PW2; that there
104
.
NARAYANCHETANRAMCHAUDHARYv. STATE OF MAHARASHTRA
105
are numerous alleged contradictions and improvements in the statement of A
aforesaid witness PW2; that as the statement of PW2 was not recorded in
terms of Clause (a) of Sub-section (4) of Section 306, his statement recorded
by the Trial Court after tendering pardon was illegal; that the statement of
every accomplice is required to be recorded firstly in the court of the
Magistrate and subsequently in the Trial Court; that as the statement of PW2
was recorded only in the Trial Court, the appellant had lost a legal opportunity B
of having his second statement enabling them to elaborately cross-examine
him; that as the statement of the Approver was recorded after an unexplained
prolonged delay, the same could not be made the basis for conviction of the
accused; that conviction based upon the uncorroborated testimony of the
Approver is neither safe nor proper particularly in a case where extreme C
penalty of death is awarded, and that as PW2 has made improvements in his
statement on material particulars, it would not be safe to rely upon his
testimony for convicting the appellants and sentencing them to death. The
appellants contended in the alternative that even if the conviction of the
appellants is upheld, they may not be sentenced to death keeping in view young
age and the possibility of their being reformed, and that in no case appellant D
No. 2 can be sentenced to death as he is alleged to have killed only one child.
Dismissing the Appeals, the Court
HELD: 1. A perusal of the Sections 306 and 307 Cr.P.C. clearly indicates
that Section 306 is applicable in a case where the order of commitment has not E
been passed and Section 307 would be applicable after commitment of the case
but before the judgment is pronounced. The provisions of sub-section ( 4) (a) of
Section 306 would be attracted only at a stage when the case is not committed to
the court of Sessions. After the Commitment, pardon is to be granted by the
trial court subject to the conditions specified in sub-section (1) of Section 306, F
i.e. approver making a full and true disclosure of the whole of the circumstances

## Text

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A
B
NARAYAN CHETANRAM CHAUDHARY AND ANR.
v.
ST A TE OF MAHARASHTRA
SEPTEMBER 5, 2000
[K.T. THOMAS AND R.P. SETHI, JJ.)
Criminal Procedure Code, 1973: Sections 306 and 307-Evidence of
approver-Non-recording by the Magistrate-Effect of-Law mandates
C satisfaction of the Court that accused would make full and true disclosure
of the circumstances without his knowledge relating to the crime-It could
also be recorded after commitment of the case and before the judgment is
passed
Criminal Procedure Code, 1973-Sections 161, 162-Statement under
D interrogation-Held, cannot be used for contradicting witness.
Penal Code Section 302-Murder of seven females of a family including
two children and a pregnant woman-One of the accused becoming
approver-Death sentence for other accused granted by Sessions Court
confirmed by High Court-Held, rarest of rare case-Hence death sentence
E confirmed
Appellants along with one R, committed the murder of seven female
members of a family including two children and a maid servant. The offence
of murder was committed with a view to wipe out all evidence of theft and
robbery committed by the accused. After the case was committed to the
F Sessions Court and prior to the trial as per the request of the accused R the
prosecution sought for permission to get his confession recorded which was
granted by the trial court. The prosecution then filed an application for
tendering pardon to R on making necessary inquiries and on the condition
that he shall make true and full disclosure of all facts within his knowledge,
G which was allowed by the trial court. After trial, the trial court convicted both
the Appellants and sentenced them to death. The criminal Appeals filed by
Appellants were dismissed and the death sentence was confirmed by the High
Court.
In Appeal to this Court the Appellants submitted that it would be unsafe
H to award death sentence solely on the basis of testimony of PW2; that there
104
.
NARAYANCHETANRAMCHAUDHARYv. STATE OF MAHARASHTRA
105
are numerous alleged contradictions and improvements in the statement of A
aforesaid witness PW2; that as the statement of PW2 was not recorded in
terms of Clause (a) of Sub-section (4) of Section 306, his statement recorded
by the Trial Court after tendering pardon was illegal; that the statement of
every accomplice is required to be recorded firstly in the court of the
Magistrate and subsequently in the Trial Court; that as the statement of PW2
was recorded only in the Trial Court, the appellant had lost a legal opportunity B
of having his second statement enabling them to elaborately cross-examine
him; that as the statement of the Approver was recorded after an unexplained
prolonged delay, the same could not be made the basis for conviction of the
accused; that conviction based upon the uncorroborated testimony of the
Approver is neither safe nor proper particularly in a case where extreme C
penalty of death is awarded, and that as PW2 has made improvements in his
statement on material particulars, it would not be safe to rely upon his
testimony for convicting the appellants and sentencing them to death. The
appellants contended in the alternative that even if the conviction of the
appellants is upheld, they may not be sentenced to death keeping in view young
age and the possibility of their being reformed, and that in no case appellant D
No. 2 can be sentenced to death as he is alleged to have killed only one child.
Dismissing the Appeals, the Court
HELD: 1. A perusal of the Sections 306 and 307 Cr.P.C. clearly indicates
that Section 306 is applicable in a case where the order of commitment has not E
been passed and Section 307 would be applicable after commitment of the case
but before the judgment is pronounced. The provisions of sub-section ( 4) (a) of
Section 306 would be attracted only at a stage when the case is not committed to
the court of Sessions. After the Commitment, pardon is to be granted by the
trial court subject to the conditions specified in sub-section (1) of Section 306, F
i.e. approver making a full and true disclosure of the whole of the circumstances
within his knowledge relative to the offence and to every other person concerned,
whether as principal or abettor, in the commission thereof. Section 307 in its
present form does not contemplate the recording of the statement of the approver
twice as argued. Accepting the submissions made on behalf of the appellant would
amount to legislating something in Section 307 which the legislature appears G
to have intentionally omitted. (120-D-G]
Suresh Chandra Bahri v. State of Bihar, (1995] Supp. 1 SCC 80, referred
to.
2. There is no legal obligation on the Trial Court or a right in favour of H
106
SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.
A the accused to insist for the compliance with the requirement of Section 306
(4) Cr.P.C. Section 307 provides a complete procedure for recording the
statement of an accomplice subject only to the compliance of conditions
specified in Sub-Section (1) of Section 306. The law mandates the satisfaction
of the court granting pardon, that the accused would make a full and true
B disclosure of the circumstances within his knowledge relative to the offence
and to every other person concerned, whether as principal or abettor, in the
commission thereof. It is not necessary to comply with the requirement of
Section 306 (4) when the pardon is tendered by the Trial Court. The Trial
Court, in this case has taken all precautions in complying with the provisions
of Section 306 (1) before tendering pardon to accused R, who later appeared
C as PW2. There is no violation of law or illegality in the procedure for
tendering the pardon and recording the statement of PW2. (121-C-E]
3. There is no substance in the submissions of the Appellants that as
the statement of the Approver was recorded after a prolonged delay, no reliance
could be placed upon it. The delay in granting the pardon may be a just
D criticism, where it is found that the pardon had been tendered at the end of
the trial and in effect was intended to fill up the lacunes in the prosecution
case. Such is not the present case. (123-B]
E
F
G
Lal chand & Ors. v. State of Haryana, (1984] 1 SCC 686, relied on.
4. From the judgment of the Trial Court as well as the High Court it is
crystal clear that the courts were conscious of the credibility of an Approver's
witness and insisted upon the corroborative evidence in material particulars of
the depositions made by PW2. It cannot be said that the testimony of PW2 has
not been corroborated in material particulars. The statement of PW2 is vivid in
explanation and inspires full confidence of the court to pass the conviction on
the appellants for the offences with which they were charged. The
corroborative evidence to the aforesaid statement leaves no doubt in the mind of
the court regarding the involvement of the appellants in the commission of the
crime for which they have been convicted and sentenced. (131-H; 132-A-B)
Suresh Chandra Bahri v. State of Bihar, (1995] Supp. 1 80, Jananendra
Nath Ghose v. The State of West Bengal, [1960] 1 SCR 126; Bhiva Doulu
Patil v. State of Maharashtra, AIR (1963) SC 599; Dagdu & Ors. v. State of
Maharashtra, [1977] 3 SCC 68; Ba/want Kaur v. Union Territory,
Chandigarh, [1988] 1 SCC 1 and Niranjan Singh v. State of Punjab, JT (1996)
H
~ SC 582, referred to.
(
' J
NARAYAN CHETANRAM CHAUDHARYv. STA TE OF MAHARASHTRA
107
Taylor in "A Treatise on the Law of Evidence" 1931 Vol I Para 967, A
referred to.
5. The statement made under interrogation cannot, in any way, be termed
to be a statement recorded under Section 161 which could be used for the
purpose of contradiction of the witness under section 162 Cr.P.C. Only such
omissions which amount to contradiction in material particulars can be used B
to discredit the testimony of the witness. Omission in the police statement by
itself would not necessarily render the testimony of witness unreliable. When
the version given by the witness in the Court is different in material
particulars from that disclosed in his earlier statements, the case of the
prosecution become doubtful and not otherwise. Minor contradictions are C
bound to appear in the statements of truthful witnesses as memory sometimes
plays false and the sense of observation differ from person to person. The
omissions in the earlier statement if found to be of trivial details, as in the
present case, the same would not cause any dent in the testimony of PW2.
Even if there is contradiction of statement of a witness on any material point,
that is no ground to reject the whole of the testimony of such witness. On an D
analysis of the statement of PW2 his statement under section 161 Cr.P.C.
and the deposition made by him during investigation the court has come to a
conclusion that there is no material improvement, much less contradiction
in the deposition made by him before the Trial court after being granted
pardon. The so-called improvements are in fact the details of the narrations E
extracted by the Public Prosecutor and the defence counsel in the course of
his examination-in-chief and cross-examination. (133-B, C; 134-G-H]
State of HP. v. Lekh Raj andAnr., (1999) 9 Supreme Today 155, referred to.
6. The present case is one of the rarest of rare cases warranting the
extreme penalty imposable by law. The case of appellant No. 2 is not F
distinguishable. But for his active participation in the conspiracy and its
execution, accused No. 1 could not have succeeded in committing the murder
of six persons including a pregnant woman and a teenaged child. The manner
in which appellant No. 2 committed the murder of Pis not only ghastly but
reflects his beast like mental attitude. The appellants do not deserve any G
sympathy from the law and society. Thus, the conviction and sentence awarded
to the appellants by the Trial Court and confirmed by the High Court, are
upheld. (141-E-F)
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 2526 or2000.
H
108
SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.
A
From the Judgment and Order dated 22.7.99 of the Bombay High Court
in Crl.A. No. 415 and 462of1998.
S. Muralidhar and S: Vallinayagam for the Appellants.
U.U. Lalit, Arun Pednekar, S.S. Shinde and S.V. Deshpande for the
B Respondent.
The Judgment of the Court was delivered by ·
SETHI, J. Three desperadoes, the two appellants and one Raju (PW2)
who had gone amuck, committed the heinous crime of murders in a most
. C ghastly and shocking manner for which the appellants were charged with
various offences punishable under Sections 120B, 302, 34, 342, 392, 297 and
449 of Indian Penal Code. On proof of the charge that the appellants had
committed the murder of five innocent women, one of whom was pregnant,
and two children of teenage of one and a half years and two and a half years,
they were convicted and sentenced to death alongwith other sentences by
D the Trial Court. The High Court accepted the Reference made for confirmation
of the death sentence and dismissed the appeals filed by the appellants for
setting aside their convictions.
On the date of occurrence the appellants were of 20-22 years of age.
E The deceased, victims of the crime, included Meerabai Rathi, aged about 45
years, her daughter-in-law Babita @ Nita Rathi, aged about 24 years, her
unmarried daughter Preeti aged about 19 years, her married daughter Hemlata
aged about 27 years, her maid servant Satyabhamabai Sutar aged about 42
years, Chirag, son of Babita aged two and a half years, Pratik, son of Hemlata
aged one and a half years.
F
All women and children were killed one by one by inflicting numerous
knife blows on their persons. All the deaths, except of Pratik (child of one and
a half years) were actually caused by the brutal knife blows inflicted by
Narayan Chetanram Chaudhary (hereinafter referred to as "the accused No. l").
G Pratik was killed by Jitendra@ Jitu Nayansingh Gehlot (hereinafter referred
to as "the accused No.2"). Raju, PW2 actively participated and facilitated the
commission of the crime. The murders were apparently committed to wipe out
all evidence of robbery and theft committed by the accused persons.
The prosecution case, as revealed from the investigation and official
H report filed in the Court, is that complainant Sanjay Rathi (PWl) along with
.
I
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NARA YAN CHETANRAM CHAUDHARY v. STATE OF MAHARASHTRA [SETHI. J.] 109
his father Keshrimal Rathi, his mother deceased Meerabai Rathi, his younger A
sister deceased Km.Preeti, his wife deceased Babita and his son deceased
Chirag were residing in Flat No. 6 on the Second Floor ofHimanshu Apartment,
Shilavihar Colony, Puad Phata, Kothrud, Pune. One of the daughters of
Keshrimal Rathi, deceased Hemlata was married to Shri Shrikant Navandhar
PW15 in the year I 992 and had come to her parents' house along with her
son on the fateful day. Raju Rajpurohit who was Accused No.3 and later after B
becoming approver appeared as PW2, a resident of Muklava District,
Ganganagar, Rajasthan after passing I I standard examination in the year I 99394 came to his elder brother Kalyan Singh at Pune for the purposes of getting
further education while working or serving there. He was employed in Bombay
Vihar situated at Laxmi Road, Pune since June, I994. Accused No.I and C
Accused No.2 were also working at the said Bombay Vihar during the aforesaid
period as Cook and Counter Salesman respectively. After being acquainted
with each other, all the three became friends. Raju, PW2 was removed from
Bombay Vihar on 8th June, I994 whereafter he got the service at Sagar Sweet
Mart owned by Keshrimal Rathi and his son Sanjay Rathi (complainant). In
the course of his employment he used to go to the house of Rathis to bring D
Chappatis for servants of the shop, daily and thus acquainted himself with
the family members of the complainant as also their maid-servant. Raju worked
with the Rathis for about two to two and a half months. When his request
for enhancement of salary was declined by the Rathis, he left their service.
At this time Accused No.2 went to him and informed that he too has left the E
job at Bombay Vihar and, therefore, Raju should talk to his employer to keep
Jeetu in their service. Raju requested Sanjay Rathi to employ Accused No.2
but as he demanded a salary of Rs. 1200, Sanjay Rathi expressed his inability
to provide him the job. Meanwhile Raju learnt that Accused No. I has also
left the job at Bombay Vihar. Thereafter all the three went to a room in Nagpur
Chaw! in which Accused No. I was residing and started living there.
F
After being rendered jobless and the limited amount they had with them
being spent, they started thinking about their future. They hatched a conspiracy
.
and made up a plan of robbing the house of some "seth" i.e. a businessman.
On the night of 23rd August, I 994 they decided to commit theft/robbery at G
the house of Rathis. Accused No. I told the other accused that before
committing the theft/robbery they have to make some further preparations. He
suggested to purchase a knife because all the inmates of the house were to
be killed so that no-one could depose anything against them. They also
· decided to sprinkle chilly powder in the mouth and eyes of their victims to
immobilise them for easy killings by the accused. On 24th August, I 994 all H
110
SUPREME COURT REPORTS [2000) SUPP. 3 S.C.R.
A the accused persons discussed the details of the plan to commit the theft and
killings at the house of Rathis. Accused No.2 agreed to sell his silver anklet
and out of its sale proceeds to purchase a new knife. They went to the shop
of Shrinagar Jewellers on 24th August, 1994 in the evening. Accused No.2
requested the proprietor of the shop to purchase his said silver anklet. As
B Accused No.2 was not having the purchase receipt of his anklet, the
shopkeeper refused to purchase it. However, as the accused persons were
then residing at Nagpur Chaw! which was adjacent to the Shrinagar Jewellers'
shop, the anklet was kept as pledge and they were given a sum of Rs. 90/
- as loan. They went to the shop of Jaswant (PW5) and purchased one utility
knife ofFiscer make (Article 147) for Rs. 55.
c
On 25th August, 1994 at about 11 a.m. to 12 Noon, the accused persons
went towards the house of Rathis to observe the situation. They stayed and
surveyed the said area and found that the area remained isolated during 2.00
p.m. to 4.00 p.m. They decided to commit the act of theft after killing all the
persons, whosoever were found at the house of Rathis during the aforesaid
D period only.
On 26th August, 1994 at about 8.45 a.m. the complainant Sanjay Rathi
is stated to have left his house for his shop. Thereafter Hemlata, deceased
with her husband and son arrived at the house of Rathis in connection with
E tying Rakhi to her brother PWl as she had not come for the said purpose
on the day of Rakhi, Poornima Festival on 2 lst August, 1994. Sanjay Rathi,
PWI came to his house at about I p.m. to 1.30 p.m. on his motorcycle. Sanjay
and his brother-in-law Shri Shrikant Navandhar, PW15 took their meals and
went to the complainant's shop. Accused persons left their room at about 12
Noon for going to the house of Rathis. Accused No. I was armed with the new
F
knife and Accused No.2 with the old one. They had taken with them chilly
powder regarding which decision had already been taken, as according to
them its throwing in the eyes of victims would have facilitated the commission
of the crime. They reached near the house of Rathis at about 2 p.m. They saw
one motorcycle kept near the said building whicb was identified by Raju PW2
G as belonging to Sanjay Rathi, PWI. Realising that Sanjay Rathi, PW I was
at his house, they returned to the main road and watched. After about one
hour they again returned near the building of Rathis. After noticing that the
motorcycle of Sanjay Rathi was not there, they decided to execute their plan.
Accused No. I told Accused No.3 (PW2) to go-ahead into the house of Rathis
and start talking with the family members in respect of his service and by that
H time they would reach there after chaining the doors of other flats in the said
0
-..
NARAYAN CHET ANR.\M CHAUDHARY v. STA TE OF MAHARASHTRA [SETHI, J .] 111
building from outside. After the doors of all other flats were chained from A
outside, Raju (PW2) went to the flat of Rath is. He found that the door of the
flat was half open and when he peeped into the said flat he saw the maidservant, deceased Satyabhamabai Sutar cleaning the floor with the water. He
entered the flat and the ~ppellants followed him. Appellant Jeetu closed the
door from inside.
AccusP.d No.2 Jeetu threw chilly powder on the inmates of the flat who
had collected into the hall on hearing the call made by the maid-servant. All
B
the inmates were made to keep quite and surrender to the orders of the
accused persons lest they may be deprived of their lives with the knives
which the appellants had in their hands. The family members of Rathis were C
taken to different rooms in the flat.
Realising that the middle aged woman Meerabai, who had raised her
voice, was the lady of the house, Accused No. 1 promptly asked her about
valuables. Seeing a knife in his hand and realising the danger to her life as
also the lives of the rest of the members of the family she immediately pointed D
out a finger towards an almirah inside the room. Accused Nos. I and 2 took
her to the said room. Accused No.2 handed over the packet containing
remaining chilly powder to Raju, PW2 and directed him to sprinkle it on the
victims if they started shouting or making any other effort.
Smt. Meerabai was done to death with the knife blows inflicted by E
Accused No. I and was left to lie on bed where she died. Thereafter Babita
@ Nita was taken to another room, apparently for getting the valuables and
was killed by Accused No. I by inflicting knife injuries on her person. Her son
Chirag was also likewise killed by the aforesaid accused. Raju PW2 took Preeti
into the bath room at the instance of Accused No. I who cut a length of wire
of washing machine and used it to choke her to death, who however, survived. F
When they came out of the bathroom, they heard some noise from the
bathroom which prompted accused No. I to go again inside. In the bathroom
he found Preeti alive and told his other colleagues that 'she was still alive
and had not died'. To accomplish the conspiracy hatched he gave knife blows
to her which resulted in her death. Raju PW2 took Satyabhamabai Sutar in G
the kitchen where the accused No. I had already reached and was washing the
blood stained knife. Raju held Satyabhamabai Sutar and accused No. l gave
knife blows resulting in her death. Thereafter Raju and accused No. I went
towards a room where the married daughter of Rathis was held up by Accused
No.2. Pratik, her son was tried to be taken from her, which she resisted.
Accused No.2 assured her that he will not kill the child but will give him to H
112
SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.
A his grandmother and threatened that ifthe child was not given to him, he will
kill the child. Hemlata was also killed by inflicting knife injuries. Accused No.2
and Raju PW2 took the child into the room where Mecrabai was lying dead
in the pool of blood. The child was suffocated by gagging and when his
movements stopped, the Accused No.2 put down the child on the floor
B saying he had died. Accused No.2 and Raju PW2 then came out and joined
Accused No. I who was standing before Hemlata. Upon enquiry about the
child she was told by Accused No.2 that the child had been given to her
grandmother. Accused No. I then caught hold of Hemlata who put some
resistence and in the process fell down. Accused No.2 gave her blows by
putting his knees on her stomach and when she was immobilised this way,
C the Accused No. I gave her knife blows on her neck with the result she also
died.
Almirahs found in the flat were emptied to the extent the accused could
put articles and other cash and valuables in the air-bag obtained from the said
flat. Before leaving the scene of occurrence Accused No. I changed his pant
D which was blood stained and also put on him khaki jerkin clothes which were
available in the house. Accused No.2 helped himself to a black shirt. Blood
stained clothes of Accused No.2 were put in the air-bag along with stolen
articles. At the time when they were about to leave the flat, the phone
installed therein started ringing. Accused No. I cut the telephone wires with
E his knife. At this stage they heard the cries of child from the room where
Meerabai was lying dead. All of them went inside and found that the child,
Pratik had not died. Despite the death spree caused, they did not think even
to leave that child alive. Accused No.2 took the knife from Accused No. I and
gave blows to the child and killed him.
F
After completing the crime of theft/robbery and murders, the accused
persons came out of the house with the air-bag in which they had kept the
blood stained clothes, knives and stolen property. Vishwajit Joshi, PW9 saw
accused persons coming out of the compound wall of the concerned Himanshu
Apartments where the flat of the Rathis was located. On the road they
boarded a Ricks~aw ~nd came back to their room in Nagpur Chaw!.
G
As noticed earlier, San jay Rathi, PWI, his brother-in-law Shrikant
Navandhar (PWI5) had left the flat before the accused attacked the victims.
Both of them went back to the house ofRathis by 6.45 p.m. Sanjay Rathi PWI
rang the door-bell and as nobody opened the door, he made inquiries from
Smt. Khara and Smt. Dhade as to whether the key of the door of his flat was
H kept at their houses. On getting reply in the negative, Sanjay Rathi made
.. -
NARAYAN CHETANRAM CHAUDHARY v. STA TE OF MAHARASHTRA [SETHI, J.) 113
inquiries from his relatives and family members by making phone calls from A
the house of Mrs. Khara as to whether his family members had gone there
and on receiving the information in the negative he telephoned his father at
the shop. His father told him that nobody from the family members had come
to the shop nor did he receive any message from them. Sanjay Rathi went to
the shop and brought the duplicate key. Meanwhile Damu Sutar, the husband B
of the maid-servant had also come there. Sanjay Rathi PWI opened the door
with the duplicate key in the presence of Shrikant Navandhar PW15, Damu
Sutar and Smt. Shannila Dhade. Upon entering in the flat they saw the maidservant Satyabhamabai Sutar lying dead in a pool of blood. They rushed out
crying and saying that the police be called. On hearing the cries of co1nplainant
Sanjay Rathi, the neighbourers and by-passers got collected in front of the C
building. Two of the neighbours went to Kothrud Police Station and informed
the police that several persons had gathered in front of the Apartment in
which the flat of Rath is was situated. Entry about the information was recorded
in the Station Diary whereafter PI Vikram Pawar along with his staff rushed
to the Apartment building. The said Sh. Vikram Pawar along with Sanjay Rathi
PWI and Shrikant Navandhar, PWI 5 entered the flat and saw the maid- D
servant Satyabhamabai Sutar, Preeti, Meerabai, Pratik, Babita, Hemlata and
Chirag lying dead in pools of blood in the kitchen, bathroom, bed-room and
the store of the flat of Rathis. The almirahs were found open. Sanjay Rathi
was asked to verify the purportedly stolen articles. Sanjay Rathi was not in
a condition to check the articles on account of the shock received after E
having seen the dead bodies all around in his flat. However, after the passage
of some time and consolation by Vikram Pawar, San jay Rathi told the police
that a cash of Rs.85,000 besides gold and silver ornaments was missing.
Meanwhile, after reaching Nagpur Chawl, where the accused persons
were residing, Accused No.2 asked PW 2 Raju to bring liquor and some F
edibles for which he was given Rs. 200. The air-bag was opened in which they
had kept their blood stained clothes, mouth-organ, knives, camera, one bundle
of Rs. 500 currency notes denomination, one bundle of Rs. I 00 currency notes
denomination, one bundle of Rs. 50. currency notes denominations and bundles
of Rs. l 0. denominations, besides gold and silver ornaments. Raju kept for G
himself a mouth-organ, camera and a lady wrist watch of Rico make as also
some coins of Nepal origin. Mangalsutra and one HMT watch was taken
away by Accused No. I. Golden chain, three golden bangles and one golden
ring, having S.R. written on it, were taken away by Accused No.2.
Raju PW2 was asked by Accused No. I to wash the blood stained H
114
SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.
A clothes. While washing Pant of Accused No.I Raju found one gold ring in
the pocket which he took out and kept with him. As he could not wash the
blood stained clothes of Accused No. 1 he put back the ring in the pocket
of the pant which was later on concealed in the tin roof. The accused
thereafter went to the jewellery shop where the silver anklet was pledged.
B After making the payment they got the silver anklet released. On reaching
back in the room in the Nagpur Chawl, they consumed the liquor brought by
PW2 and moved around the area for about an hour or so. Again coming back
to the said room, Accused No. l declared that he will go and hide the knives.
He went away and on his return, upon inquiry, he told that the knives were
hidden near the latrine.
c
On the next day at the instance of Accused No. I Raju brought Newspaper
"Prabhat" and "Aaj Ka Anand" wherein the incident of murders and dacoity
was reported without indicating the identity of the accused persons. In the
afternoon they purchased the Evening Newspaper "Sandayanad" which carried
further details of the incident and mentioned the name of Accused No.2 being
D probably responsible for the crime. After reading such news item they agreed
to part company and to meet at Ahmedabad on 29th August, 1994. They met
at Ahmedabad and again dispersed. Accused No. I was arrested on 5th
September, 1994, Accused No.2 on 21st November, 1994 and Raju PW2 on
15th October, 1994 from different places in Rajasthan. They made disclosure
E statements consequent to which various articles were recovered vide
panchanamas prepared in accordance with law. In the identification parades
they were identified by various witnesses.
All the three accused persons were committed to the Court of Sessions
for standing trial of various offences under the Indian Penal Code as noticed
F earlier.
After the commitment but before the commenc~ment of the trial Accused
No.3 Raju Rajpurohit sent a letter to the Commissione; of Police repenting and
expressing his wish to make a confessional statement. PI Shinde (PW 63) filed
G an application in the Trial Court along with letter of accused Raju dated 22nd
November, 1995 praying the permission of the Court for getting the confrssional
statement of the accused Raju Rajpurohit recorded. The Trial Coμrt accepted
the application and directed the Superintendent of Prisons to allow to get the
confessional statement of Raju recorded. Shri Khomane, Special Judicial
Magistrate was also directed to record the confessional statement of Raju.
H The confessional statement, as recorded by Special Judicial Magistrate (PW41)
_.
NARAYAN CHETANRAM CHAUDHAR Y v. ST A TE OF MAHARASHTRA [SETHI, J.) 115
was received by the Trial Court in a closed envelope.
A
On 3rd January, 1996 an application under Section 307 of the Cr.P.C. was
filed on behalf of the prosecution with a prayer to tender pardon to accused
Raju Rajpurohit, on making necessary inquiries and on the condition of his
making true and full disclosure of all the facts within his knowledge. On
receipt of the said application, the Trial Court directed the Superintendent of B
the concerned jail to produce the aforesaid accused in the Court on 4.1.1996
at 11 a.m. The arguments on the application of the prosecution were heard
after affording the advocates of the appellants an opportunity of addressing
the court. The Trial Court, after hearing accused Raju observed:
c
"On query by this Court he stated before me that he is prepared to
make a full and true disclosure of the whole of the circumstances
within his knowledge regarding these offences and the entire incident
involved and that he is ready to accept the pardon. I have carefully
perused the entire record of this case and also the confessional
statement of this accused Rajendrasingh alias Rajusingh Ramlal Purohit D
which has been recorded by Special Judicial Magistrate, Pune. The
said confessional statement was received in this Court in a closed
envelope on 21.12.1995 from Shri G.H. Khomne, Special Judicial
Magistrate and since the said envelope was not bearing lac seals on
the packet I kept the said envelope in another envelope, closed the E
said envelope and got the lac seals put on it. Today I opened the said
sealed envelope of this Court and also the inner envelope and took
out the said confessional statements in open court and then perused
the same. I am satisfied from the said confessional statements made
by this accused Rajendrasingh alias Rajusingh Ramlal Purohit and
other material on the record of this sessions case that this accused F
Rajusingh alias Rajendra Singh Ramlal Purohit has participated into
the entire incident involved and thus his privy with all the happenings
at the time of incident.
It is clear from the record of this sessions case that there is only G
circumstantial evidence and there are no eye-witnesses of this incident,
and therefore, with a view of obtaining at the trial the evidence of any
person who have witnessed the incident, it is necessary to tender
pardon to the present accused Rajendrasingh alias Rajusingh Ramlal
Purohit as prayed by the prosecution. The accused Rajusingh alias
Rajendrasingh Ramlal Purhoit has also shown his willingness to become H
116
A
SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.
an approval and to make a full and true disclosure of the whole of the
circumstances within his knowledge relating to the offences and the
every other persons concerned whether as principle or abetor in the
commission thereof and further shown his willingness to accept pardon
if the same is tendered to him."
B and ordered that accused Raju was tendered pardon on condition that he
shall make a full and true disclosure of the whole of the circumstances within
his knowledge relating to the offence. The aforesaid accused was directed to
be sent to the District Prison, Satara and be detained there until further orders.
Copies of the statement were furnished to the counsel of the appellants.
c
After recording the statement of the prosecution witnesses the learned
Trial Judge recorded the statement of the accused under Section 313 of the
Criminal Procedure Code. The Trial Court undertook a very elaborate exercise
by putting almost 600 questions to the accused with respect to the evidence
brought on record and the circumstances appearing against them. Accused
D No. I pleaded alibi by stating that he was not in Pune. Accused No.2 admitted
of being in Pune and also that he knew the Approver as they had been
working together in Bombay Vihar Restaurant. He put forth a case of there
being enmity with the Approver. He has admitted that Raju PW2 was working
in Bombay Vihar where he also worked. Accused No. I denied that he knew
E Raju PW 2 at all. None of the accused, however, led any defence evidence.
F
G
H
On behalf of Accused No.2 besides making oral submissions his counsel
submitted written arguments comprising of 470 pages (Exhibit 349 contained
in Vol. IV of the paperbook).
After scanning the whole of the prosecution evidence, hearing the oral
submissions and perusing the written arguments, the Trial Court, in a very
lucid and detailed judgment, convicted and sentenced the appellants as under:
"The accused No. I Narayan is convicted for the offence punishable
under Section 302 of the Indian Penal Code (for causing the deaths
of deceased Meeradevi Kesrimal Rathi, deceased Babita alias Nita
Sanjay Rathi deceased Priti Kesrimal Rathi, deceased Chirag Rathi,
deceased Hemlata Shrikant Navandhar and deceased Satyabhamabai
Damu Sutar), for the offence punishable under section 302 read with
120-B of the Indian Penal Code (for causing the death of deceased
Pratik Navandhar), and for the offence punishable u/s 120-B of the
Indian Penal Code, and is sentenced to death and he be hanged by
'
.-
NARAYAN CHETANRAM CHAUDHARY v. STA TE OF MAHARASHTRA [SETHI, J.] 117
neck till he is dead and to pay a fine of Rs. 10,000 I/d to suffer R.I
A
for three years on all counts.
The accused No.2, Jitu is convicted for the offence punishable under
section 302 of the Indian Penal Code (for causing the death of Pratik
Shrikant Navandhar) and for the offences punishable under section
302 read with 120-B of the Indian Penal Code (for causing the death
of deceased Meeradevi Rathi, deceased Babita alias Nita Rathi, deceased
Hemlata Shrikant Navandhar, deceased Preeti Rathi, Satyabharnabai
Damu Sutar and Chirag Rathi) and for the offence punishable under
section 120-B of the Indian Penal Code and is sentenced to death and
be hanged by neck till he is dead and to pay a fine of Rs. 10,000
I/d to suffer R.I for three years on all counts.
Both the accused persons are convicted for the offence punishable
under section 397 read with 120-B of the Indian Penal Code and each
is sentenced to suffer R.l. for seven years and to pay a fine of Rs.
5,000 I/d to suffer further R.I. for two years for such offence.
Both the accused persons are convicted for the offence _punishable
under section 449 read with 120-B of the Indian Penal Code and each
is sentenced to suffer R.I. for seven years and to pay a fine of Rs.
5,000 I/d to suffer R.l. for two years for such offence.
B
c
D
Both the accused persons are further convicted for the offence
E
punishable under section 342 read with 34 of the Indian Penal Code
and each is sentenced to suffer R.I. for one year and to pay a fine of
Rs. 500 lid to suffer R.I. for one month for such offence.
Substantive sentences of imprisonment and sentences of imprisonment
in default of fine to run consecutively.
Accused No. l Narayan be given set off of the period from 5.9.94 till
today and the accused No.2 Jitu be given set off of the period from
21.1.94 till today during which they were in custody during
investigation and trial."
Criminal Appeal Nos. 462 of 1998 and 415 of 1998 filed by the Appellants 1
and 2 respectively were dismissed by the High Court vide an elaborate
judgment. The High Court also accepted the Reference made to it by the Trial
Court for confirmation of the death sentence. Not satisfied with the judgment
F
G
of the High Court, the present appeals have bi>~n filed in this Court by special H
118
SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.
A leave.
We have heard the learned counsel for the parties appearing in the case
and perused the record. Mr. S. Muralidhar, Advocate who appeared as amicus
curaie, has taken us through the whole record of the case besides making
legal submissions to assail the concurrent judgments, impugned herein, by
B which the appellants have been held guilty of the commission of the offences
for which they were charged and sentenced to various punishments including
the death sentence.
Mr. S. Muralidhar has attacked the statement of the Approver on various
C grounds and submitted that it would be unsafe to award the appellants the
death sentence solely on the basis of testimony of PW2. He has also referred
to numerous alleged contradictions and improvements in the statement of
aforesaid witness PW2. Alternatively it has been argued that keeping in mind
the young age of the appellants, they be not deprived of their lives and
instead be deprived of their liberty though for longer period.
D
Referring to Sections 306 and 307 of the Cr.P.C. the learned counsel for
the appellants submitted that as the statement of Raju PW2 was not recorded
in terms of Clause (a) of Sub-section (4) of Section 306, his statement recorded
by the Trial Court after tendering pardon was, illegal. According to the
E learned counsel the statement of every accomplice is required to be recorded
firstly in the court of the Magistrate and subsequently in the Trial Court. As
the statement of PW2 Raju was recorded only in the Trial Court, the appellants
are reported to have lost a legal opportunity of having his second statement
enabling them to elaborately cross-examine him.
F
In order to appreciate the submissions of the learned counsel a reference
G
H
to Sections 306 and 307 Cr.P.C. is necessary. Section 306 provides:
"Tender of pardon to accomplice (I) With a view to obtaining the
evidence of any person supposed to have been di:-ectly or indirectly
concerned in or privy to an offence to which this section applies, the
Chief Judicial Magistrate or a Metropolitan Magistrate at any stage
of the investigation or inquiry into, or the trial of, the offence, and the
Magistrate of the first class inquiring into or trying the offence, at any
stage of the inquiry or trial, may tender a pardon to such person on
condition of his making a full and true disclosure of whole of the
c'ircumstances within his knowledge relative to the offence and to
ti
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I
NARAYANCHETANRAMCHAUDHARYv.